Judiciary Power and Practice - The courts and foreign policy

While war can be viewed as a specific component of foreign relations,
foreign relations in general suffer from the same constitutional
ambiguities as war. In addition to the president's commander in
chief powers, the Constitution grants the president the power to make
treaties and to receive and appoint ambassadors. Together, these grants of
power are the source of the president's authority to conduct
foreign policy. The Constitution's framers did not want the
president to be as powerful as European monarchs in international matters,
so Congress was given a voice too. While the president is free to
negotiate treaties, they must be ratified by two-thirds of the Senate.
Congress's only other constitutional authorizations over foreign
policy derive from the powers mentioned earlier: the power to declare war,
raise a military, and appropriate funds.

The judiciary has provided little guidance in more clearly demarcating
executive and legislative branch powers in foreign policy, often invoking
the political question doctrine. The result is that Court rulings either
supported the actions of the political branches or refused to judge them.
Baker
v.
Carr
(1962) is the principle case outlining the Supreme Court's
position on political questions. Although
Baker
v.
Carr
concerned the malapportionment of election districts in Tennessee, the
Court's comments on political questions apply to domestic and
foreign policy issues. Writing for the majority, Justice William Brennan
outlined the circumstances under which a case involved a political
question and the obligation of federal courts to abstain from ruling.
Among other instances, Justice Brennan opined that judicial abstention
would be appropriate whenever a case raised foreign policy questions that
"uniquely demand single-voiced statement of the Government's
views." Despite this attempt at clarification,
Baker
v.
Carr
continued to confuse constitutional scholars and lower courts because the
guidelines set forth by Justice Brennan did little to clarify the
definition of political questions, the circumstances under which an issue
is nonjusticiable, or the approach the courts should take when confronted
by cases that appear political and nonjusticiable.

For several reasons, then—an explicit constitutional role for
Congress confined to treaties, the exclusion of individual states from
traditional foreign policy, and judicial deference to the political
branches in such matters—the president and executive branch have
been the principle beneficiaries of Court rulings in foreign policy
matters.
United States
v.
Curtiss-Wright Export Corporation
(1936) was a landmark case that confirmed the president's lead
role in foreign affairs. In this case, Congress approved a joint
resolution authorizing President Roosevelt to embargo arms shipments to
Paraguay and Bolivia, if doing so might contribute to ending the war.
After Roosevelt declared an embargo in effect,
Curtiss-Wright
was subsequently convicted of selling weapons to Bolivia in violation of
the embargo. The company challenged the constitutionality of the
resolution, arguing that it was an improper delegation of congressional
power to the president.

Given that the Court had already struck down major New Deal programs,
there was some expectation that it would do the same with respect to arms
embargoes. However, in his 7–1 majority opinion, Justice George
Sutherland presented an original and controversial defense of presidential
authority in foreign affairs. Sutherland argued that independence from
Britain fused the thirteen original colonies into a sovereign nation. He
also distinguished between internal (domestic policy) and external
(foreign policy) powers of the federal government. Internal powers, he
argued, lay with the individual states and are conferred upon the federal
government by the Constitution. External powers, however, derive the
sovereignty that all countries enjoy, and sovereignty was passed from
Britain to the union of states upon independence. Since the powers of the
United States to conduct its foreign relations do not derive from, nor are
enumerated in, the Constitution, it is impossible to identify or infer
them from constitutional language. As a result, the Court's view
was that delegation of power to the president in foreign affairs was not
to be judged by the same standards as delegation of power over domestic
matters. Consequently, the "president alone has the power to speak
as a representative of the nation."

Sutherland's opinion is open to criticism from several angles. If
the federal government derives powers from sources other than the
Constitution, neither the Constitution nor the courts provide guidance in
the distribution of such powers between the branches. The implication that
foreign affairs powers of the federal government are extra-constitutional
goes beyond previous Court opinions that, less controversially, found
foreign affairs powers to be vested in the federal government by the
Constitution. Further, the notion that the federal government was to have
major powers outside the Constitution is not insinuated in the document
itself, the records of the Constitutional Convention, the
Federalist Papers,
or contemporary debates. Sutherland's opinion is grounded in
sovereignty, but it is also possible to interpret the Declaration of
Independence as creating thirteen sovereign states, and many did conduct
their own foreign relations until the Articles of Confederation.
Sutherland's reliance on political philosophy and international
law, rather than constitutional interpretation, as a basis for foreign
policy powers is also controversial. Finally, drawing a clear distinction
between foreign and domestic policy is becoming increasingly difficult to
do, and an approach that derives different sources of power for each is
bound to generate legal challenges. Sutherland's position holds up
best if one takes the view that the Constitution is a document whose
principle objective is to distribute power between the states and federal
government, and among the branches of the federal government. Despite the
criticisms,
Curtiss-Wright
is a landmark case in the broadening of federal and, in particular,
presidential authority in foreign affairs.

Presidents have found additional means to increase their foreign policy
powers. One is to use executive agreements, since they do not require
Senate ratification but have been held by the Court to have the same legal
status as treaties (
United States
v.
Pink,
1942). Executive agreements are of two forms: those authorized by
Congress and those made on presidential initiative. Authorized executive
agreements have provided authority for presidents to negotiate the
lowering of tariff barriers and trade agreements. The Lend-Lease Act
(1941) granted President Roosevelt the power to enter into executive
agreements that would provide war material to "any country deemed
vital to the defense of the United States." Numerous executive
agreements have been negotiated regarding the stationing of U.S. military
forces in other countries. Executive agreements made on presidential
initiative have often been obtained during international conflict,
including the ending of the Spanish-American War and the deployment of
troops during China's Boxer Rebellion. The Supreme Court, in
United States
v.
Belmont
(1937), upheld Roosevelt's use of an executive agreement to
formalize his decision to recognize the Soviet Union, noting that it had
the effect of a treaty and overruled conflicting state laws. Roosevelt
used executive agreements extensively in the years leading up to World War
II and to negotiate agreements at the Cairo, Tehran, and Yalta
conferences. President Lyndon Johnson made many secret agreements with
Asian countries during the 1960s, and President Jimmy Carter used
executive agreements that constituted the financial arrangement necessary
to free American hostages in Iran. In
Dames & Moore
v.
Regan
(1981), the Supreme Court ruled that Presidents Carter and Reagan had
acted consistently with emergency powers granted by statute to use
executive agreements to suspend the financial claims of Americans against
Iran, in return for the safe release of the hostages seized during the
1979 Iranian revolution.

While the treaty approval process is described in the Constitution and has
raised few problems, the relationship between treaties, domestic laws, and
the Constitution is less clear. One area of confusion was whether treaties
were superior to national legislation. In
Foster & Elam
v.
Neilson
(1829), Chief Justice John Marshall distinguished between a
self-executing treaty and a non-self-executing treaty. The former requires
no legislation to put it into effect, while the latter does not take
effect until implemented through legislation approved by the Congress and
president. The superiority of a treaty or statute is determined by
whichever is most recent. However, in the case of a non-self-executing
treaty, congressional acts take precedence (Head Money Cases, 1884). In
Missouri
v.
Holland
(1920), the Court's ruling illustrated how treaties could increase
the power of the federal government visà-vis the states. The Court
upheld the national law protecting migratory birds on the grounds that it
was necessary to carry the provisions of this non-self-executing treaty
into effect.

The Court has also considered the termination of treaties. It has held
that termination requires an act of Congress. If international obligations
are violated as a result of the termination, the matter will need to be
renegotiated with the international parties. However, the Court has also
ruled that treaties may be terminated by agreement between the contracting
parties, by treaty provisions, by congressional repeal, by the president,
and by the president and Senate acting jointly. When President Carter
decided to officially recognize the government of the People's
Republic of China, he unilaterally terminated a mutual defense treaty
between the United States and Taiwan. The Supreme Court refused to hear a
case brought by Senator Barry Goldwater and nineteen other senators (
Goldwater
v.
Carter,
1979) asking the Court to require the president to first obtain
congressional authorization.

It is clear that, for two centuries, the courts have played an important
role in resolving foreign policy disputes between the executive and
legislative branches. But this is only one of the two principle divisions
of power established by the Constitution. The other principle is dividing
power between the states and federal government. Along this division, too,
the courts have been required to resolve disputes over foreign policy
powers.